If you believe that the assault on the U.S. Capitol will be President Trump’s last attack on the federal government, think again. Another vengeful parting shot at the “deep state” is in the works, ready to launch on his last day in office.
The White House is planning a purge of upper-level civil servants as payback for contradicting political appointees, whistleblowing, leaks to the media and forthright congressional testimony at Trump’s first impeachment trial. It combines “draining the swamp” and populating it with his own swamp animals.
Trump has been insulting public employees for years and since becoming president he has sought to fire “bad people” and replace them with “people who really love our country.” After a series of failed attempts to override their job protections and to dismantle the Office of Personnel Management (OPM) that ensures merit-based standards, Trump signed an executive order in October 2020 that created a Schedule F in the expected service. It threatens thousands of civil servants with dismissal and creates non-competitive job openings to install his stalwart enablers in the Biden administration.
All federal government agencies are currently identifying career positions of a “confidential, policy-determining, policy-making, or policy-advocating character” for this reclassification and must report to OPM by Jan. 19, just before Inauguration Day. On the grounds that they must “display appropriate temperament, acumen, impartiality, and sound judgment” and “critical qualities… such as work ethic, judgment, and ability to meet the particular needs of the agency,” leaders must have “flexibility” to dismiss “poor performers,” and so Schedule F positions will not enjoy job protections. People hired into Schedule F jobs will also not have to compete for them by demonstrating competence. This will make it easier for the president both to summarily terminate impartial high-level bureaucrats and “burrow in” loyalists who will stick around after the transition takes place.
This past Friday, the administration has also quietly instituted a new rule that introduces five-year term limits on the top scientists in the health sector. The job reviews of around 60 career federal health officials who serve as center directors at the Food and Drug Administration (FDA), Centers for Disease Control and Prevention (CDC) and other health agencies could lead to reassignment, putting the scientists under political pressure and compromising their independent, evidence-based judgement. Employees perceive the rule as retaliation for criticism of this administration’s handling of the pandemic and a road map for future Republican policy, even if Biden reverses it.
Clearly, Trump’s policy is not about performance, but rather pushing civil servants into political compliance while stoking populist grievances about federal employment privileges most Americans lack. When termination is an ever-present risk, fear likely inhibits many workers from speaking their mind. The 2019 OPM Federal Employee Viewpoint Survey reveals only two-thirds of civil servants agreed they can disclose a suspected violation of any law, rule or regulation without fear of reprisal.
What can be done to prevent implementation of Schedule F at the 11th hour, when OPM is run by Trump insiders who can immediately approve the reclassification and dismissal of upper-level civil servants and the installation of unqualified personnel on Jan. 19?
The National Treasury Employees Union (NTEU) sued Trump and Michael Rigas, the acting director of OPM, in U.S. District Court for the District of Columbia to declare the executive order “unlawful and ultra vires.” Late on Jan. 15, the government’s motion to dismiss the suit insisted that the law gives the president authority to make exceptions of positions from the competitive service and that the president, unlike federal agencies, is not required to explain the decision. It also pointed out that, so far, OPM has not reclassified anyone, even the 88 percent of Office of Management and Budget (OMB) employees designated for Schedule F but not represented by the NTEU. With no specific harm, the claim is not “ripe” for judicial review, and anyway, NTEU should first appeal to the Merit Systems Protection Board or the Federal Labor Relations Authority (FLRA). The court has yet to rule.
Of course, President-elect Joe Biden is expected to reverse the executive order. But if implemented on Jan. 19, it will cause delays and chaos throughout the federal bureaucracy in the middle of multiple crises. To reverse the firings, Biden will still have to process the terminations and rehiring, offer severance or deal with retirements of frustrated workers. To reverse the burrowing in of political appointees hired into permanent Schedule F jobs, those fired can file complaints of political discrimination with the Office of Special Counsel (OSC). If they lose, it sets a precedent for future Republican presidents wishing to fire civil servants.
A more permanent solution is simply to change the law. Back in October, Democratic members of the House and Senators introduced bills to overturn the executive order but failed to attract bipartisan support. Then Republicans squelched an attempt to include a measure in the omnibus budget to withhold funds to federal agencies that try to implement Schedule F. But in January, Reps. Gerry Connolly (D-Va.) and Brian Fitzpatrick (R-Pa.) introduced a bipartisan bill, the “Preventing a Patronage System Act,” to enjoin this and future administrations from reclassifying career civil service positions. Arguing these jobs “should 100 percent be based on merit, skill and experience, not on political connections,” the bill would block Trump’s Schedule F executive order without explicitly mentioning it. It has to pass, and fast.
The 1883 Pendleton Act established the civil service to end the 19th century “spoils system” of political patronage. Hiring qualified bureaucrats who are protected from arbitrary, politically-inspired dismissal, ultimately protects us.
Hilary Silver is a professor of sociology, international affairs and public policy & public administration at George Washington University.